Di Giorgio Fruit Corp. v. Zachary

DOOLING, J. pro tem.

This appeal is prosecuted from an order denying defendants’ motion for change of place of trial from the city and county of San Francisco to the county of Los Angeles.

The complaint seeks recovery of the purchase price of certain wine sold and delivered by plaintiff’s predecessor, Earl Fruit Co., under two separate contracts in writing. One of said contracts was admittedly entered in in San Francisco. The other contract was negotiated by one Tucker, a salesman for plaintiff’s predecessor, in Los Angeles County and an order was signed there by Tucker designated as “salesman” and by Irving Zachary representing defendants. It was on a printed form containing the provision:

“This order is subject to approval and acceptance of the office of Earl Fruit Co., at San Francisco, Calif. ’ ’

Pursuant to this provision a letter of acceptance of the

[562]

order by Earl Fruit Co. was mailed in San Francisco addressed to defendants on April 18, 1941.

Under the express terms of the writing above quoted it did not become a binding contract until the signing and mailing of the letter of acceptance, and the mailing having occurred in San Francisco the contract was entered into in that city and county.

(Parker Co., Inc.

v.

Exeter Refining Co.,

26 Cal.App.2d 610 [79 P.2d 1114].) The county in which the contract “in fact was entered into” was a proper place for trial under see. 395, subd. 1, Code Civ. Proc.

(Limited Mut. Comp. Ins. Co.

v.

Curtis,

45 Cal.App.2d 507 [114 P.2d 404];

Pacific Const. Finance Co.

v.

Kramer,

42 Cal.App.2d 190 [108 P.2d 723].)